Court creates separate standard for political blogosphere

A recent case involving political bloggers raises the question of whether the law of defamation has a role to play in a context where less regard appears to be paid to facts and the truth, says Toronto civil litigator John Philpott.

“I think this is just another example of the courts playing catch up to our modern society and trying to change the law of defamation so that it doesn't chill important forms of speech, such as political speech,” he tells AdvocateDaily.com. “We are seeing the courts continue to attempt to bring defamation into the modern era. Courts are grappling not just with technological issues, but with a society that is expressing itself on certain mediums in crasser, if not vitriolic, ways.”

In this case, plaintiff John Baglow is the owner and operator of an Internet blog site known as Dawg’s Blawg, where he posts left-wing opinions and political commentary using the pseudonym "Dr. Dawg."

“Particular to this case it is to be noted that he actively opposed Canada’s engagement in the war of Afghanistan and supported the repatriation of Omar Khadr from Guantanamo Bay to Canada on the grounds that he is entitled to be treated as a child soldier and in accordance with the rule of law,” the ruling states.

In 2010, defendant Roger Smith, posting under the pseudonym "Peter O’Donnell," posted a lengthy comment on a message board called Free Dominion “which, among other things, referred to the plaintiff as ‘one of the Taliban’s more vocal supporters,’” the ruling states.

Baglow objected to this comment as being defamatory and requested that the defendants Mark and Connie Fournier — who moderate the message board — remove it from the site, which they refused to do.

“It is the position of the defendants, on the other hand, that the words are not defamatory, that they are an expression of opinion only and that if defamatory the defence of fair comment applies,” Justice Heidi Polowin wrote in her decision.

“Further, the Fourniers take the position that the impugned words were written, posted and thus published by Mr. Smith. According to the Fourniers they functioned only as the administrators of the forum and should not be considered to have published the impugned words for the purposes of liability for defamation.”

Philpott, who did not act as counsel on this case, says it’s interesting to note that Polowin began her decision by stating that the political blogosphere “can be, and, often is, rude, aggressive, sarcastic, hyperbolic, insulting, caustic and/or vulgar. It is not for the faint of heart.”

Because the court found the political blogosphere to be such a hotly contested environment where everyone is attempting to be provocative, the court was asked to consider what would lower someone's reputation in this context, he says.

In dismissing the action in favour of the defendants on the basis of the defence of fair comment, Philpott says the court stopped short of creating an immunity for the blogosphere, but took a broad view on what constitutes fair comment.

“From the fact that the plaintiff supported Khadr’s repatriation, the court found it to be fair comment to say he is ‘one of the Taliban’s more vocal supporters,’” he says. “The test is not whether the opinion is reasonable, but whether any person, including a prejudiced or biased person, could honestly hold the belief. We may see the boundaries of ‘honest belief’ continue to stretch if other blogging defamation cases are pursued,” he says.

Philpott says it’s interesting to note that the defendants relied on the Supreme Court of Canada’s reasons in WIC Radio Ltd. v. Simpson, [2008] 2 SCR 420, 2008 SCC 40 (CanLII) in support of their position that the impugned words in this case are not prima facie defamatory — a similar defence used by blogger and journalist Ezra Levant in his recent libel suit.

"In this case, the defendants were trying to argue that in the political blogosphere everything is taken with a grain of salt and people should know to not take everything as fact. The court stopped short of creating an immunity for bloggers, but did give them a lot of room to manoeuvre based on the fair comment defence,” he says.

Another interesting aspect of the case, says Philpott, is that the court ruled you can still bring a case even if your avatar or pseudonym is defamed, as long as the public has a means of reasonably determining your identity.

As well, the court did not grant immunity for message board operators when it comes to liability, says Philpott.

"It's been a bit of a debate whether someone who operates a forum for other people to post on can attract any liability,” he says. “In this case, the Fourniers attempted to get a finding that there should be a blanket immunity and the court said no, and said on these facts the operators did monitor their site and because of that they could potentially attract liability."

Philpott says that when it comes to political speech, courts are careful to not invoke a libel chill on society. In fact, the Canadian Civil Liberties Association was granted intervener status in this case.

“At the same time, the debate that goes on in these political blogospheres can be quite vitriolic and there are statements made that might otherwise be seen as defamatory, and so the court here seems to be creating a separate standard for the blogosphere and giving them a much longer leash as to what they can say and use a fair comment defence to do that,” he says.

“We will need more decisions from the court to create certainty in this area. Although the recent Ezra Levant decision did not permit the defence of fair comment, I expect that case to become an outlier and that courts will increasingly side on the view of fair comment when political speech is involved.”